PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 04-12-050.
Title of Rule and Other Identifying Information: Administration of breath test program.
Hearing Location(s): Washington State Patrol, Forensic Laboratory Services Bureau, 2203 Airport Way South, Suite 360, Seattle, WA 98134, on September 7, 2004, at 9:00 a.m.
Date of Intended Adoption: September 14, 2004.
Submit Written Comments to: Barry K. Logan, Ph.D., Washington State Toxicologist, 2203 Airport Way South, Suite 360, Seattle, WA 98134, e-mail barry.logan@wsp.wa.gov, fax (206) 262-6018, by August 31, 2004.
Assistance for Persons with Disabilities: Contact Kitty Jacobs by August 31, 2004, (206) 262-6000.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Changes to RCW 46.61.506 have made sections of the current chapter 448-13 WAC redundant. The changes repeal many obsolete and redundant provisions, and move others from the Washington Administrative Code to agency policy and procedures. The proposed changes in rules are designed to simplify the administration of the breath alcohol test program used by law enforcement agencies, and administered by the Washington State Patrol. Due to the significant scope of changes, the prior rules chapter 448-13 WAC are being struck in their entirety and replaced with proposed chapter 448-16 WAC.
Reasons Supporting Proposal: The proposed rules are keyed specifically to the authority delegated in RCW 46.61.506 to the state toxicologist. The statute as revised and effective June 10th, 2004, states "The state toxicologist is directed to approve satisfactory techniques or methods, to supervise the examination of individuals to ascertain their qualifications and competence to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state toxicologist."
Statutory Authority for Adoption: RCW 46.61.506.
Statute Being Implemented: RCW 46.61.506.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Barry K. Logan, Ph.D., governmental.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Barry K. Logan, Ph.D., 2203 Airport Way South, Suite 360, Seattle, WA 98134, (206) 262-6000.
No small business economic impact statement has been prepared under chapter 19.85 RCW. No small business impact. Only regulates government agencies.
A cost-benefit analysis is not required under RCW 34.05.328. Agency compliance not required per subsection (5)(a)(i).
July 30, 2004
Barry K. Logan, Ph.D.
Washington State Toxicologist
REPEALER
The following chapter of the Washington Administrative
Code is repealed:
| Chapter 448-13 WAC | Administration of breath test program. |
ADMINISTRATION OF BREATH TEST PROGRAM
NEW SECTION
WAC 448-16-010
Basis for rules governing breath testing.
In RCW 46.61.506(4), the legislature establishes criteria for
the admissibility of breath alcohol test evidence. RCW 46.61.506(3) authorizes and directs the state toxicologist to
approve satisfactory techniques or methods, to supervise the
examination of individuals to ascertain their qualifications
and competence to conduct such analyses, and to issue permits
to those individuals. These rules are intended to implement
the direction of the statute by 1) approving instruments and
associated equipment capable of performing a reliable breath
alcohol test, 2) identifying classifications of individuals
who are to be examined for their competence to conduct such
tests, and operate or maintain that equipment, and 3)
identifying certain aspects of the operation of that
equipment, necessary for reliable testing.
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a) The DataMaster.
b) The DataMaster CDM.
(2) Pursuant to RCW 46.61.506, the following thermometers are approved:
a) Mercury in glass thermometers with a scale graduated in tenths of a degree measuring a range between 33.5 and 34.5 degrees centigrade.
b) Digital thermometer system contained within the Guth 2100 wet bath simulator.
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(2) "Alcohol" means the unique chemical compound ethyl alcohol.
(3) "Blank test" means the testing of an instrument to ensure that no alcohol from a previous test can interfere with a person's breath test.
(4) "Concentration" means the weight amount of alcohol, expressed in grams, contained in two hundred ten liters of breath or alcohol/water vapor.
(5) "Data entry" means the process of providing information through a keyboard to the instrument for the purposes of (a) identifying a breath test document to an individual and (b) statistical analysis.
(6) "Interference" means a test result whose infrared absorbance properties are not consistent with ethanol.
(7) "End expiratory air" means the last portion of breath to be delivered to the instrument once the appropriate sample acceptance criteria have been met.
(8) "External standard test" means the use of a simulator containing a certified simulator solution, to provide a known alcohol vapor concentration to test the accuracy and proper working order of the instrument. This test of the function of the instrument is performed with every breath test. The external standard test does not calibrate the instrument.
(9) "Internal standard test" means the use of a quartz filter to provide a check that the instrument has maintained calibration since the last time calibration was performed and is in proper working order at the time of the test.
(10) "Precision" means the ability of a technique to perform a measurement in a reproducible manner.
(11) "Simulator" means a device which when filled with a certified simulator solution, maintained at a known temperature, provides a vapor sample of known alcohol concentration.
(12) "Valid breath sample" means a sample of a person's breath provided in such a manner to be accepted for analysis by the instrument.
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(2) If a subject is wearing jewelry or ornamentation pierced through their tongue, lips, cheek, or other soft tissues in the oral cavity, they will be required to remove this prior to conducting the breath test. If the subject declines, they will be deemed to have a physical limitation rendering them incapable of providing a valid breath sample and will be required to provide a blood sample under the implied consent statute, RCW 46.20.308.
(3) If during a breath test, interference is detected, this will invalidate the test. The subject will be required to repeat the test. A subject whose breath registers the presence of interference on two or more successive breaths shall be deemed to have a physical limitation rendering them incapable of providing a valid breath sample and will be required to provide a blood sample under the implied consent statute, RCW 46.20.308.
(4) In the event that the instrument records an "invalid sample" result at any point during the subject's test, that subject's test should be readministered, after again determining that the subject has no foreign substance in their mouth as outlined in WAC 448-16-040(1), and repeating the fifteen minute observation period.
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The instrument will perform this test according to the following protocol when being employed to quantitatively measure an individual's breath alcohol concentration. Successful compliance with each step of this protocol is determined from an inspection of the printout of results. These steps are necessary to ensure accuracy, precision, and confidence in each test.
Step 1. Data entry.
Step 2. Blank test with a result of .000.
Step 3. Internal standard verified.
Step 4. First breath sample provided by subject.
Step 5. Blank test with a result of .000.
Step 6. External standard simulator solution test. The result of this test must be between .072 and .088 inclusive.
Step 7. Blank test with a result of .000.
Step 8. Second breath sample provided by subject.
Step 9. Blank test with a result of .000.
Step 10. Printout of results.
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(1) The breath test results shall be reported, truncated to three decimal places.
(2) The mean of the two breath test results shall be calculated and rounded to four decimal places.
(3) The lower acceptable limit shall be determined by multiplying the above mean by 0.9, and truncating to three decimal places.
(4) The upper acceptable limit shall be determined by multiplying the mean by 1.1 and truncating to three decimal places.
(5) If the results fall within and inclusive of the upper and lower acceptable limits, the two breath samples are valid.
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If an instructor fails or refuses to demonstrate to the state toxicologist or to his representative, that they have the ability to adequately perform their responsibilities as an instructor, then the state toxicologist will suspend their permit.
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If an operator fails or refuses to demonstrate to the state toxicologist or to a certified instructor, that he or she has the ability to adequately perform his or her responsibilities as an operator, then the state toxicologist will suspend their permit.
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If a solution changer fails or refuses to demonstrate to the state toxicologist or to a certified instructor, that he or she has the ability to adequately perform his or her responsibilities as a solution changer, then the state toxicologist will suspend their permit.
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Technicians are authorized to perform maintenance, calibration and instruction in the use of the portable breath test devices. Technicians are also authorized to instruct persons otherwise qualified as "technicians", "instructors," "operators," and "solution changers" according to training outlines approved by the state toxicologist. Certified technicians are themselves authorized to perform the duties of "instructors," "operators," and "solution changers."
If a technician fails or refuses to demonstrate to the state toxicologist or his representative, that he or she has the ability to adequately perform his or her responsibilities as a technician, then the state toxicologist will suspend their permit.
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Reviser's note: The unnecessary underscoring in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 448-16-150
Address for correspondence.
Information
regarding instrument records, or the certification of
operators, instructors, solution changers, and technicians
should be obtained from the Washington State Patrol, Breath
Test Section, 811 E. Roanoke, Seattle, WA 98102.
Persons seeking information regarding other aspects of the breath alcohol testing program shall direct their request initially to the State Toxicologist, Washington State Toxicology Laboratory, Forensic Laboratory Services Bureau, Washington State Patrol, 2203 Airport Way S., Seattle, WA 98134.
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